0~0_6 76J~3BEFORETHOMAS F.. LEVAK, ARBITRATOR

REGULAR WESTERN REGIONAL PANEL

In the Matter of the Grievance----,--.-,-- ..- W4N- 5R-.D__44413Arbitration Between : W4N-5R-C' 45036

U . S . POSTAL SERVICETHE "SERVICE"

(Lynnwood, Washington)

and

NATIONAL ASSOCIATION OFLETTER CARRIERS-AFL-CIO

THE "UNION"

(D . Mock Grievant)

RECEIVEDDEC 3 iii

JIM EDGEMON, ,NBA.

DISPUTE'S AND GRIEVANCESCONCERNING REMOVAL FORUNSATISFACTORY WORKPERFORMANCE-EXPANSIONOF STREET TIME

GTS #2312 ;2313

ARBITRATOR'S OPINIONAND AWARD

These matters came for hearing before the Arbitrator at 9 :00__ a.m., November 10, 1987 at the offices of the Service, Tynnwood_

Washington. The Service was represented by Jeffrey Foster, whowas assisted by Janice San Jose . The Union was represented byJim Williams, who was assisted by Jim Edgemon and JoeQuintanilla . The Grievant-te-stit"ed and appeared t-hroughout theproceedings . Testimony and evidence were received, and thehearing was declared closed following oral closing argument .Based upon the evidence-and-Arbitrator

the argum:en s of the parfes, thedecides and awards as follows .

OPINION

, na / Notice or .. -rropos-e -Ttewavdi issue-d--bySupervisor of Delivery--and-Collections-James Walters to-theGrievant provides as follows :

This is advance written notice that it isproposed to remove you from the Postal Serviceno sooner than thirty (30) days from the dateof your receipt of this letter . This actionis based on the following reasons :

Unsatisfactory Work Performance - Expansiono Street Time :

On March 6, 1987 your street time was 5hours and 47 minutes .

On March 9, 1987 your street time was 6

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hours and 3 minutes .

On March 10, 1987 your street time was 5hours and 38 minutes .

On March 11, 1987 your street time was-6-hours and 3 minutes .

On March 18, 1987 your street time was 6hours and 4 minutes .

On December 9, 1986 your route was counted byRobert Westfall, Route Examiner . You carriedthe route in 5 hours and 22 minutes .

On January 30, 1987, your route was counted byTerry Dickenson, Supervisor . You were givenone and one-half (1 1/2) hours of auxiliaryassistance . You carried the route in 3 hoursand 27 minutes with one and one-half-(1 1/2)hours assistance for a total street time of 4hours and 57 minutes .

On February 3, 1987,1 ins.pecYou had a coverage and made at least 95% ofyour possible deliveries . You carried theroute in 5 hours and 7 minutes .

A reasonable street time has been establishedthat has been met by you and other employees .You aye been informed of what is acceptable--------------

--------job _ performance and told -when-you-failed_ _ i- .omeet that performance . You have continued notto perform at an acceptable level despiterepeated corrective action. Your failure toput forth an acceptable effort will not bev

Postal service is a service -orientedorganization and as such has commitments to itscustomers, one of which is to provide reliableand efficient service . Our customersappreciate being able to count on timelydelivery of their mail , and as a professionalLetter Carrier this is your duty . Customerservice becomes increasingly important as thenature of the business becomes more and morecompetitive .

By your actions you are in violation of thefollowing Postal Rules and Regulations :

NA Article 34 .A . The principle of a fairday s work for a fair day's pay isrecognized by all parties to this Agreement .

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M-41 City Delivery Carrier Manual, Sections :

112.1 "Provide reliable and efficientservice"

122 .11 "Deliver mail on a prescribedroute, on a regular schedule ."

ELM 666 .1 Discharge of Duties

Employee [sic] are expected to dischargetheir assigned duties conscientiously andeffectively .

ELM 661 .21 .3 . Give a full day's labor for afull day's pay ; giving to the performance ofduties earnest effort and best thought .

ELM 66 1 .3 .C . Impeding Postal Serviceefficiency or economy .

Your value as an employee is reduced based onprevious action .-Which_cs_eated.__the_necessitg _.o.f-_

gdeferring your Step Increase on June 3, 1983,and of issuing a Letter of Warning forUnsatisfactory Work Performance - Expansion ofStreet Time on February 9, 1987, and a 7-daySuspension for Unsatisfactory Work Performance- Expansion of Street Time on February 13,1987 . (J2)

The April 7, 1987 Letter of Decision issued byPostmaster/OIC Jerry Chastain provides in relevant part :

On March 21, 1987 you were issued a Noticenpp5 9

0 utlined n the Notice . have givent

30, 1987 and your written answer of the samedate and all other evidence of record . Ifind, however, that the charges, as stated inthe Notice which was dated March 20, 1987, arefully supported by the evidence and warrantyour removal .

In regard to your answer and other informationsubmitted on your behalf :

Pat Foley, NALC Steward, in his letter datedMarch 29, 1987 alleges that the times thatwere cited for each of the three (3) routeinspections were cited in error. Mr . Foleystates the actual street time on December 9,1986 was five (5) hours and 52 minutes

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according to the clock rings. The time offive ( 5) hours and 52 minutes includes a 30minute lunch, the time of five (5) hours and22 minutes does not include a lunch. As thetime of December 9, 1986 route count, which iscited in your Notice of Proposed Removal, doesnot include a lunch ; ----the--time ive (5)hours and 22 minutes is correct .

Mr. Foley claims the actual total street timeof the January 30, 1987 route inspectionshould be five (5) hours and 36 minutes .Again, the time cited by Mr . Foley includes alunch and the time cited in your Notice ofProposed Removal does not. The time without alunch, even adding nine (9) more minutes ofauxiliary assistance, still comes to five (5)hours and six (6) minutes . This is within one(1) minute of the time Mr . James Walters cameup with on February 3, 1987 .

Mr. Foley claims the actual total street timeof the February 3, 1987 route inspectionshould be five (5) hour s and 27 minutes . Theroute count of February 3, 1987 was conductedproperly and the street time of five (5) hoursand seven (7) minutes that was arrived at iscorrect .

These three ( 3) route inspections were donecorrectly, cited correctly and are-evidence-that you are capable of carrying your route _onthe street in approximately five ( 5) hours .In your answer and in the other materialsubmitted on your behalf , little was said ofyour performance as cited in your Notice of

A lam-little way--caidconcerning the fact that the street time you

counts was met by the other---carriers whocarried your route .

In summary, and it remains unrebutted, youhave shown the ability to carry your route onthe street in approximately five (5) hours(5 :22 on December 9, 1986 ; 4 :57 or 5 :06 onJanuary 30, 1987 ; 5 :07 on February 3, 1987) ;the other Carriers who have carried your routehave carried the route in the time youdemonstrated in the three (3) route counts (orbetter) .

You received disciplinary action on February9, 1987 and February 13, 1987 forUnsatisfactory Work Performance - Expansion of

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Street Time, and yet you continued yourunsatisfactory performance (as evidenced byyour performance as cited in your Notice ofProposed Removal) .

Mr. Foley in his letter of March 29, 1987claims the proper procedure for determining aroute's street time is to be found in Section242.3 of the Handbook M-39. Mr. Foley goes onto claim that in your case a street time wasdetermined from one route count . The M-39section cited by the Union is not relevant inyour case. You, by your own performance,showed on three (3) separate occasions, withthree (3) different Managers, the level ofperformance you are capable of .

Mr. Foley makes reference to an "incident"between yourself and Mr . James Walters. Ifail to see any relationship between aninteraction you had with Mr . Walters and anycrrection actions that were taken, or withthis removal .

Mr . Foley also mentions you have a high regardfor safety . A review of your safety recordshows poor safety performance and nothing thatwould indicate a high reia±ll-far-safety . ._

Mr. Foley put forth no supportable reason tomitigate your removalfrom the -Postal --Service .----The reasons that he put forth, such as yourconcern for safety , are not supported by therecord .

In response to your letter of March 30, 1987 Iappreciate, your former mi l i+ary corn ; .id

your years of Postal service . The fact

satisfactory work . performance,-- when--you-have -shown the ability to perform satisfactorily,your removal from the Postal Service iswarranted. You failed to respond to priorcorrective action concerning your performanceand so made your removal necessary. Yourletter does not address the merits of thecharges as set out in your Notice of ProposedRemoval . I must then consider those chargesunrebutted by you .

The Postal Service is a service-orientedorganization and has commitments to itscustomers . It must be able to supplyaccurate, timely and reasonably priceddelivery services or it will cease to exist .

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You have shown the ability to perform at acertain level and other Carriers doing thesame route have been able to perform at thatlevel, but when you perform your routeunsupervised you fail to perform at the levelyou have demonstrated . This unsatisfactoryperformance cannot be-tolerated .

The action will be effective April 24, 1987 .(J3)

At the commencement of the arbitration hearing, the partiesstipulated that the following issue was to be resolved by theArbitrator :

Did just cause exist as is required by Article16 of the National Agreement for the Notice ofProposed Removal issued the Grievant underdate of March 20 , 1987 for " unsatisfactorywork performance -expansion of street time" aswell as a Letter of Decision issued April 7,1987 on the same charge?

If not, what is the appropriate remedy?

II . FINDINGS OF FACT .

Background .

This case concerns the Lynnwood Washington office of theService.At the time of his_.removal~ the Gr iev_an t had se_ rved asa Letter Carrier for ten years, all of that time at Lynnwood .For the past seven years, his regular bid route was Route 3615 .Since November 12, 1986, the Grievant's immediate supervisor wasSuperintendent of Delivery andCollections James Walters . At alltimes relevant, the 11estmaster/OIe %as JerryClhcatain

The warning letter and suspension cited as past elements inthe Notice of Proposed Removal were overturned in expeditedarbitration by arbitrator McCaffrey on October 31, 1987 . Thestep increase deferral referred to in the Notice of ProposedRemoval was overturned at Step 3 of the grievance procedure .

Facts Relating to the Grievant's Performance on Route 3615 .

Prior to September 22, 1986, the street time for theGrievant's route was six hours fifteen minutes . On September 22,1986, seventy to eighty stops were cut from the route . Prior tothe time the Grievant had the opportunity to deliver the adjustedroute, his then-supervisor asked him if he believed the cut wasabout forty-five minutes in length . The Grievant informed himthat forty-five minutes seemed about right, and based on that

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estimate, the Grievant's then-supervisor posted the time for theroute at between five hours thirty minutes and five hours thirty-fiveminutes .

From September 22, 1986 until February 1, 1987, theGr ievant's route increased by approximately fifty stops . TheGrievant timely completed form 1521's noting the additional newstops .

The only evidence is that on most days, the Grievantdelivered his route in the allotted time, but that when volumewas relatively heavy, or where marriage mailers were added, orwhere a number of accountables were added, the Grievant, fromtime-to-time, failed to meet the allotted street time . TheArbitrator now turns to the specific days cited in the Notice ofProposed Removal .

On December 9, 1986, the Grievant's route was counted byRoute Examiner Robert Westfall . The evidence at the arbitrationhearing established that the Grievant carried his route in fivehours fifty-two minutes, not the five hours twenty-two minutescited in the Notice of Proposed Removal . Westfall did nottestify, and it was the Grievant's unrebutted testimony thatWestfall cited no deficiencies or time-wasting practices to him_The Grievant noted that Westfall did comment that it was notnecessary to lock the vehicle while delivering a certified letteror a parcel, but when the Grievant told Westfall that he had beeninstructed to An so and-that--others-had been disciplined for notdoing so, Westfall advised him to continue to practice . TheGrievant further noted that on December 11, 1986, Westfall cameto his case-and advi-sedbim to finger-mail-with his hand, ratherthan from the tray . The Grievant testified that from that pointforward he followed Westfall s advice. The Service presented noevidence regarding the volume or type of mail on the Grievant'sroute on December 9, 1986 .

n„ ,n . _,-s 'An. 1987 tine Grievnnt 's route was counted bySupervisor Terry Dickenson. Again, the Service presented no

that-day.- Because the Gr-ievant -had worked approved overtime fourdays in a row, the Service, in order to avoid penalty overtime ona fifth day, gave the Grievant one and one-half hours auxiliaryassistance .

The Service utilized the auxiliary assistance time of oneand one-half hours to calculate a net street time for theGrievant of four hours fifty-seven minutes . On cross-examination, Walters conceded that it was improper to utilizeauxiliary assistance time to calculate a net street time, andthat under established handbook and manual provisions, theService should have utilized the Grievant's last 3919 tocalculate the net .

It also was the Grievant's unrebutted testimony thatDickenson cited no time wasting practices or other deficiencies

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to him for January 30 .

On February 3, 1987, Walters inspected the Grievant's route .Again, the Service offered no evidence regarding the volume oftype of mail on that day . However, it was the Grievant'sunrebutted testimony that volume was light and that at thecommencement of the day, he had given five and one-half hours ashis estimated street time . Significantly, it was stipulated atthe commencement of the arbitration hearing that the Grievantactually took five hours twenty-seven minutes to complete hisroute on that day, not the five hours seven minutes cited in theNotice of Proposed Removal . Walters cited no deficiencies orshortcoming to the Grievant on the route as he carried it on thatday, and cited no deficiencies or shortcomings to him on that dayafter he completed the route .

On February 5, 1987, the Grievant was called to a meetingwith Walters and Dickenson . Only the Grievant testifiedregarding the contents of that meeting. According to theGrievant, only the following three things were discussed at thatmeeting . First, Dickenson advised the Grievant that the way hewas reloading trays while delivering was unsafe and told him tofollow a different method, a method that is more time consuming .Second, Dickenson advised the Grievant that he was talking toolong to get certifieds signed, but she did not explain anyspecific time-wasting practice ; she simply told him to workfaster . Third, she told the Grievant that he took twenty-eightminutes on auxiliaries, a too-long period of time . The Grievantsimply disputed that he had taken that period of time andasserted that Dickenson had improperly counted the time it tookto drive from lunch to his first box .

Regarding March 6, 1987, the Grievant testified that hisstreet time was five hours twenty-six minutes, not five hoursforty-seven minutes, as asserted in the Notice of ProposedRemoval . The Grievant's testimony is supported by his clock

Rgc_-caltors conceded that from the -form 4570 it was -possiblethat the Grievant only used five hours twenty-six minutes on that

On March 9, 1987, it was the Grievant's unrebutted testimonythat volume was heavy, that he had a marriage mailer and a pricesetter coverage sequenced into his flats, that trade mail volumewas high, that he had large parcels, and that accountables werehigh. His morning estimate for the route was six hours tenminutes, and he actually used six hours three minutes . Hisestimate was not disputed prior to leaving on the route and hecompleted a form 3996 that was approved . Again, the Serviceitself offered no evidence regarding volume or the type of mailon that date .

Walters testified that on March 10, he specifically askedthe Grievant to give any explanation he might have regarding thepurported expanded time on March 6 and March 9, and that theGrievant simply responded that he was doing the best he could .

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The Grievant specifically testified that Walters never asked himto explain those two dates .

On March 10, 1987, the Grievant took five hours thirty-eightminutes to deliver his route. Again, the Service offered noevidence regarding the volume ._or type-of mail involved .

When the Grievant returned from his route on that day, hestopped Chastain on the dock and told him that he was concernedabout the warning letter and suspension letter and was fearful ofremoval, and that he wished to have a meeting with Chastain andhis shop steward . According to Chastian, the Grievant neverasked for a specific time for a meeting, so Chastain merelywaited for a more formal request . On March 15, 1987, theGrievant wrote a certified letter to Chastain claiming that nomeeting had been arranged . On March 19, 1987, Chastain wrote aletter back to the Grievant stating that a formal meeting had notbeen requested and that Chastain did not anticipate that he wassupposed to set a meeting . What is noteworthy is that Chastainnever thereafter arranged for any meeting with the Grievant . -

Regarding March 11, 1987, the Service, again, offered noevidence regarding the volume or type of mail on the Grievant's-ro ute on that da_ nan a ma

on that date . In the morning, the Grievant estimated hisdelivery time at six hours and actually took six hours threeminutes . His estimate was not disputed when he made it andovertime w.as__authnr_i_zed .._ ._-

Regarding March 18, 1987, again the Service offered noevidence regarding volume or-type-of-mail . -`The Grievant had amarriage maile r and a third bundle. Also, he held a five- minutemeeting with Walters_that was factored into his street time .

Walters testified that on March 19, 1987, he confronted theGrievant regarding.--March __1 .1_and March . 18, and asked him to

W ters never approached him .

Regarding all of the March 1987-dates,-the Grievant was notobserved on the route on any of those dates . It was hisunrebutted testimony that he did nothing abnormal or of a time-wasting nature that had been idenitified by management on thosedates . He testified that he did nothing on those dates that, tohis knowledge, would subject him to discipline .

On March 13, 1987, the Grievant made a formal request for anM-39 Section 271 .g special route inspection . Chastain testifiedthat he made the decision that the Grievant was not entitled to aspecial route inspection because he was under correctivedisciplinary action at the time and was not performing in aproper manner on the street . Chastain cited that portion ofSection 271 .g which provides that a route inspection will only beprovided where performance is otherwise satisfactory . Chastaindid not notify the Grievant that his request was being denied .

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The e_Arbitrator _notes -that -the e evidenceestablished that for asix-consecutive-week period the Grievant's route showed overthirty minutes of overtime or auxiliary assistance on each ofthree days or more in each week during that period .

Finally, it is noted that the Grievant was given no remedialtraining to correct any purported deficiencies .

Arbitrator's Specific Findings of Fact Related to theGrievant's Testimony .

The Arbitrator found both the Grievant's specific andoverall testimony to be particularly candid and forthright . Hismanner while testifying was particularly convincing . He appearedtotally relaxed and credible, and his responses had, as they say,"the ring of truth about them ." Also, his overall testimony wasin many respects unrebutted, and appeared to be consistent withall documentary evidence . Accordingly, the Arbitrator hascredited the Grievant's testimony on all matters in dispute ; andthe Arbitrator makes a specific finding of fact that the truefacts of this case are as recited by the Grievant .

The Arbitrator is aware that a witness's demeanor does not.alwAy_s__reflect the truth . Indeed, sometimes the choice is marenot to call a bumbling, inarticulate, unintelligent, or easilyconfused person as a witness not because he is dishonest, butbecause while he tells the truth it appears to be a lie .However, where a_grievant testifies in a-manner that so clearlyappears truthful, and where management is unable to meet itsburden of disproving such testimony by preponderant evidence, thegrievant's testimony must --be credited . -- That the -Arbitrator hasdone .

Evidence Regarding Alleged Disparate Treatment and AllegedDue Process Violations .

evidence regarding al leged violations of due process and allegedon

the merits in favor of the Union, and because -the Arbitratorbelieves it is important to focus upon the expansion issue,those other assertions will not be treated in this case, and theparties' contentions set forth hereafter will relate solely tothe merits .

III . SERVICE CONTENTIONS .

The Service has established that just cause existed for theGrievant's removal . It should first be noted that the partieshave stipulated that the route time was established in 1986 atfive hours thirty minutes to five hours thirty-five minutes .Thus, the Service is enforcing an already established standard .The M-39 provisions cited by the Union relate only to theestablishment of a time not yet established. Even considering

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that forty to fifty deliveries have beenn added to the Grievant'sroute, the established time is reasonable .

Second, even though the warning letter and notice ofsuspension have been overturned in expedited arbitration, and arenot binding in this case, it is important to understand thatoverturned discipline can act as notice to an employee thatdeficiencies exist . In this case , the Grievant has beenrepeatedly notified through the warning letter and suspension andthrough other counselings that deficiencies existed that wouldresult in his removal if not corrected .

Third, the real key to this case is reasonable effort . Atsome point, an employee must produce within standards establishedby management . Where the employee does not, it becomes theemployee's burden to give satisfactory reasons why thosereasonable standards are not met . In the instant case, theService set reasonable standards and the Grievant never explainedhis failure to meet those standards in any satisfactory manner .The fact is that the five hour thirty minute standard wasreasonable, that the Grievant had demonstrated he was capable ofmeeting that standard on many days, but that on numerous days hesimply did not perform .

The Service's position is supported by substantial arbitralprecedent. See Case Nos . NC-S-5193-D, 2990-D and 2991-D, Paul J .Fasser, Jr ., approved by Sylvester Garrett, January 31, 1978 ; NC-W-N07-D, William Eaton, September 98 1978 ;-NC W-11,-- 323D,December 6, 1978, William E. Rentfro ; WlC-5K-D 9232, FrancisRichard Walsh , July 5, 1983 ; and S4N- 3D-D 21653 , Denni s R .Noland, July 30, 1986 .

The Service is also supported by-numerous non-Servicearbitrations . See, Grand Union Co., 80 LA 588 (1983), and othercases provided the Arbitrator at the time of the arbitrationhearing .

The Service has failed to establish that just cause existedfor the Grievant's removal . Indeed, the Service has failed evento establish a prima facia case. This case is simple because nomatter what the Service says a reasonable standard is, there iscontractual language on how that standard must be established .In this case, the Service has used time alone as a standard andhas based that time on one-day inspections only . If the Servicewere to be allowed to do that, the door would be open for abuse ;management could simply set a time and then discipline forfailure to meet it .

It is well-established that under the National Agreement,management must tell an employee what he is doing wrong . Inthis case, there is no evidence of time-wasting practices or anytype of wrongdoing on the route by the Grievant . In fact, the

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Service's Step 2 answer itself shows that the Service based itscase on assumptions that the Grievant must have been actingimproperly, rather than any facts .

After the September 22, 1986 evaluation of the route, someforty to fifty stops were added to that route . Further, all therequirements under the M-39 Section 271 .g were met . Accordingly,management clearly violated the M-39 and the National Agreementwhen it failed to honor the Grievant's request for a six-dayroute inspection . The Service's argument that the Grievant wasnot entitled to that inspection because his work was nototherwise satisfactory is the classic "chicken-egg" argument .The Service clearly cannot simply discipline an employee and thenclaim that he is not entitled to a route inspection as a means ofcircumventing that provision .

Also important is the fact that the Grievant went directlyto Chastain and asked for a meeting to obtain a full explanationas to what he was purportedly doing wrong . That meeting wasnever afforded the Grievant, and is ridiculous that the Servicewould claim that the Grievant himself had some responsibility toarrange the meeting . It is management's responsibility toinvestigate fully, not the Grievant's obligation to arrange for ameeting .

All of the prior elements charged against the Grievant havebeen voided in arbitration . Accordingly, the chain of

-.progressive -discipl ; ne_has_been broken and the removal cannot besustained on that basis .

_- The Service -has-violated the : mandate set forth in theminutes of the National_Joi nt_ City Delivery_Committee Meeting ofNovember 16, 1983 which provide that volume, standing alone,without additional evidence to substantiate wrongful expansion ofstreet time, cannot sustain a disciplinary action .

242.321 establishes only two methods of evaluating and adjusting

Grievant .-- - - -e°as-e- o e

The evidence, as well as the stipulations of the parties,established that several of the times set forth in the Notice ofProposed Removal are inaccurate, and that when the times arecorrected, no expansion can be proved .

The Union's position is supported by substantial arbitralprecedent . See, Case Nos . W4N-5B-D 3530, Thomas Levak, December19, 1985; WIN-5B-D 28620, Carlton J . Snow, October 7, 1985; NC-S-14, 859-D, March 19, 1979, Bernard Cushman ; Cushman, May 28,1979 ; NC-S-16, 329-D and NC-S-16, 328-D, J . Fred Holly, April 10,1979 .

The Union asks for full backpay and benefits, forexpungement of the disciplinary actions against the Grievant, and

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for interest .

V . ARBITRATOR'S CONCLUSION .

The Arbitrator concludes that the Service has failed toestablish by clear and convincing evidence that the removal ofthe Grievant was for just cause and in accordance with NationalAgreement Article 16 . Accordingly, the grievance is sustained .The following is the reasoning of the Arbitrator .

Basic Principles Applicable to an Expansion of Street TimeCase .

day's work that he accords the Service and that route streetstandards are to be developed with reference to that specificCarrier. That is, where a Carrier is conscientiously working andis engaging in no deliberate or negligent improper practices, theassigned street time for his route must be adjusted and setaccording to his individual ab ilities .

The Arbitrator hereby reaffirms the principles he first setforth in Case No. W4N-SB-D 3530, grievant C . Santos, on December19, 1985, to wit : that under the National Agreement and the M-39, each Letter Carrier must be individually judged by the fair

The Arbitrator noted in the Santos case, that earlierdecisions of arbitrator Cushman and arbitrator Holly are insupport-of that basic principle . The Arbitrator also noted that __

1982 memorandum from the office of Delivery and Collection to allDelivery Divisions .

the principle had been confirmed by a pre-arbitration settlementat the National level dated October 22, 1985 and by an April 14,

At the instant arbitration hearing, the union also providedthe Arbitrator with a copy of an October 7, 1985 decision by

...__Carlton_Snow involving a grievant named Kostch , Case No. WlN-5B-D

he cited are particularly well-stated and are applicable to the

In the Kostch case, the grievant was initially removed forinadequate performance, but the removal was set aside at Step 3,with the parties agreeing that a six-day special route inspectionwould be held . The route inspection was subsequently held, andthe grievant and two other Carriers were observed on the route .At the time the grievant was observed, specific time-wastingpractices were noted, the grievant was counseled regarding thosepractices, but she continued to engage in them.

Subsequently , management kept track of mail volume on daysthat Kostch delivered her route, and offered into evidence ather subsequent removal hearing evidence that on light volumedays she did not need an adjusted time for the route . TheService also submitted into evidence forty days of randomlyselected timecards from the period of time prior to the special

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inspection, which demonstrated that the Grievant had previouslycarried her route within the proper allocated time. Managementfurther submitted specific evidence that the grievant hadreceived remedial training regarding her time-wasting practices,but had failed to correct them . Finally, management submittedspecific evidence that the average time for all other Carrierswho- delivered-t-he -route was within the adjusted standards

Arbitrator Snow noted that the Service had met all of theordinary steps to be followed in testing the propriety of thetermination for inadequate performance : standards were clearlyestablished and were reasonable ; management had informed theCarrier of those standards, had warned her and had given heranother opportunity to meet the standards ; the Carrier hadreceived remedial training ; the Carrier had been informed of theconsequences of failing to improve; and, the Carrier was givensufficient opportunity to improve, and she failed to do so .Snow thereafter cited numerous commonlaw, non-Service arbitrationdecisions in support of those basic principles .

The Arbitrator wishes to state that Snow's decision isparticularly well-researched and well-reasoned . The Arbitratoris in agreement with all of the principles and guidelines set

_ forth in the Kostch decision, finds that they are consistent withhis own as set forth in the Santos case, and adopts them asapplicable to the instant dispute.

One other evidentiary-matter__should be covered . An analysisof all of the cases cited, and particularly that of ArbitratorSnow, has convinced the Arbitrator that where proper foundationis shown e.g.,-evidence of a properly-established street time,evidence that there has been no subs tantial .-. change -of conditionson the route,_.evi6ence ..of volume on the specific days at issue,as well as the days the other Carriers carried the route, andevidence that a grievant has previously normally carried hisroute--within --properly y--es-tabl-ished-times - that the average

evidence as a means of establishing that it is reasonable tohis ---route-

within -theappropriate time-frame. However, such evidence shouldnot be received before a proper foundation is laid, since to doso could be highly prejudicial . Further, absent evidence oftime-wasting practices , an intentional slowdown , or otherimproper practices, such evidence would have to be given verylimited or no weight .

Applicati on of the Basic Principles to the Facts of ThisCase .

First , unlike the facts of the Kostch case , the September22, 1986 standard for the Grievant's route was not established byany specific M-39 provision, but rather by an arbitrarymanagerial decision , made after consultation with the Grievant,but before he had ever delivered the adjusted route . Also,while there is no evidence that the Grievant failed to meet the

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old base standard for his route, he - unlike Carrier Kostch -almost immediately was unable to continuously meet the newstandard for the route .

Second, and also unlike the facts in the Kostch case, theGrievant was not counseled regarding numerous time-wasting__gpractices . Further, unlike Kostch, the Grievant did not continuethe one time-wasting practice pointed out to him, but ratherchanged his practice.

Third, unlike the Kostch case, management in the instantcase did not determine and consider mail volume on any of thedays in question . Significantly, it was the Grievant'sunrebutted testimony that factors such as mail volume, theexistence of marriage mail or the existence of certifieds, thatcontributed to greater time on the route .

Fourth, unlike Kostch , the Grievant was given no remedialtraining .

Fifth, unlike Kostch, there is no evidence that the Grievantimproperly delivered the mail during any route inspection .

Sixth, unlike the Kostch case , the Service Aid ngt accedeto the Grievant's request for a Section 271 .g route inspection .That fact alone is fatally defective to the Service's case .The Grievant had satisfied all the conditions for a special mailcount and inspection and was improperly denied one .--

The Arbitrator agrees totally with the Union's argument thatthe Service has attempted to defend its action on a "chicken/egg"argument. For the Service's content ion to be accepted, all itwould have to do is institute disciplinary action - either beforeor after a special inspection request - to avoid the mandate ofSection 271 .g. In any event, it should be noted that at the timeof the denial, the Service had no actual evidence that-the

am-c •3 Prrnrmanc

some days he failed to complete his route within the allotted

Seventh, no foundation was laid by the Service for evidencethat other nonexceptional Carriers were able to carry theGrievant's route in the asserted proper time .

The decisions of Service arbitrators relied upon by theService do not support its position . The Fasser/Garrett awardinvolved a special six-day inspection , as well as severalsubsequent spontaneous inspections, all of which revealedintentional delaying tactics by the Carrier in an attempt to keepthe same street time. The Eaton decision involved specific time-wasting practices and a conclusion by the arbitrator that theCarrier intentionally "did move at an unnaturally, andunnecessarily slow pace*** ." The Rentfro decision involved aCarrier who was dissatisfied with the results of some seven routeinspections by different inspectors and intentionally engaged in

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delaying tactics with the aim of prolonging his street time .None of those situations all crucial to those arbitrators"rulings - are present in this case .

in sum , the grievance must be sustained on the merits forthe reason the Service did not follow the principles applicableto an expansion case .

For all the above reasons , the grievance is sustained .

AWARD

Just cause did not exist for the Notice of Proposed Removalor for the Letter of Decision . The grievance is sustained .

The Grievant immediately shall be reinstated to his formerposition and route at the Lynnwood, Washington office of theService with full backpay and benefits and without loss ofseniority ._ Further, the Notice of Removal and Letter ofDecision, and all prior disciplinary actions taken against theGrievant , shall be expunged from the files of the Grievant andfrom the files of the Service, and shall not be used against theGrievant in any subsequent di sciplinary action or in any otherproceeding . No interest is awarded .

The Arbitrator retains jurisdiction of this case solely toresolve any disagreement between the, part ies regarding the actualamount of backpay due the Grievant .

DATED this ~O day of November, 1987.

Thomas F . Levak, Arbitrator .

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